Dr. Shantanu Kadam vs National Board of Examinations and Others

Hima Kohli, J.—The present petition has been filed by the petitioner praying inter alia for directions to the respondent No. 1/NBE to withdraw and cancel its communication dated 23.04.2012, whereunder he was informed that his request for being granted grace marks by rounding-off his marks from 49.66% to 50% and being declared as having passed the Foreign Medical Graduates Examination (in short ''FMGE'') Screening Test held on 25.03.2012, could not be acceded to as there was no provision for grant of grace marks in the said examination. Learned counsel for the petitioner states that the petitioner had completed his degree of Doctor of Medicine from Davao City, Philippines and had applied to the respondent No. 1/NBE for appearing in the FMG Examination that was to be conducted by it on 25.03.2012. As per the Information Bulletin circulated by the respondent No. 1/NBE in respect of the FMGE Screening Test, it was made clear that the applicant would be declared as having passed only if he/she obtains a minimum of 50% marks in the examination. The petitioner had secured 149 marks out of a total of 300 marks, which translated into 49.66% marks that were below the pass marks. In these circumstances, an application dated 21.04.2012 was submitted by the petitioner to the respondent No. 1/NBE, seeking grant of grace marks by rounding off his result in the FMG examination to 50% and treating him as having qualified. The aforesaid request made by the petitioner was turned down by the respondent No. 1/NBE vide letter dated 23.04.2012 by clarifying that he was declared as having failed in the FMG examination and there was no provision for grant of grace marks in the said Examination.

Learned counsel for the petitioner relies on the judgment of the Supreme Court in the case of State of U.P. & Anr. vs. Pawan Kumar Tiwari & Ors. reported as 2005 (2) SCC 10 to submit that grace marks ought to have been granted to the petitioner and he ought to have been declared as passed as was done by the Supreme Court in the aforesaid case.

Learned counsel for the respondent No. 1/NBE, who appears on advance copy, refutes the aforesaid submission and states that the issue with regard to the grant of grace marks was considered by the Supreme Court in the case of Sanjeev Gupta and Others Vs. Union of India (UOI) and Another, particularly, para 31 thereof, wherein the issue that was considered was whether the candidates seeking registration from MCI after 15.03.2001 must qualify the screening test even though they had joined the medicine course abroad prior to 15.03.2002. In the aforesaid decision, it was observed by the Supreme Court that the scheme of conducting the test was on the basis of a single paper without any facility of grace marks and in case of failure on the part of the student to attempt the paper in both parts, i.e. part-I and part-II, the suggestion that pass marks be reduced below 50% was not found to be feasible and acceptable and it was held that the same had to be in tune with the minimum pass percentage fixed for the MBBS examination.

Learned counsel further fortifies his submission that grace marks could not have been granted to the petitioner by relying on a recent judgment of the Supreme Court in the case of Orissa Public Service Commission and Another Vs. Rupashree Chowdhary and Another, , wherein the Court was considering an appeal filed against the judgment of the Orissa High Court, whereunder the High Court had permitted rounding-off of the aggregate marks of the respondents therein from 44.93 % to 45% alongwith two other candidates. During the course of arguments in the aforesaid case, counsel for the respondents therein had relied on some decisions of the Supreme Court including the case of Pawan Kumar Tiwari (supra). The Supreme Court had observed that the findings recorded in the said case were not applicable to the facts of the case in hand and that they were distinguishable for the reason that the said case had dealt with posts or vacancies where marks were allowed to be rounded-off to make one whole post and the said rounding off was permissible for the reason that there could not be a fraction of a post.

The Court has heard the counsels for the parties as also examined the decisions relied upon by both sides. It is undisputed that the decision in the case of Pawan Kumar Tiwari (supra) relates to a case where 93 posts of Civil Judges in the Uttar Pradesh Judicial Services were to be filled up and the Supreme Court was examining the process adopted by the State Government with respect to the application of percentage as against the total number of posts. In the present case, the petitioner has sat for the FMGE Screening Test held by the respondent No. 1/NBE, which qualifies candidates like the petitioner herein for registration with the Medical Council of India (MCI) and not for filling up any posts. Therefore, there can be no comparison with the fact situation in the case of Pawan Kumar Tiwari(supra) as compared to the case in hand. In fact the judgment of the Supreme Court in the case of Orissa Public Service Commission (supra) would stand in the way of the petitioner, wherein it was categorically held that rounding off is not permissible except in cases where posts are to be filled up. In view of the above, the prayer made in the present petition is declined and the petition is dismissed in limine, alongwith the pending application.